Board of Elections ran into publication problem w/updates

Minutes from the Oct. 30 meeting for the state Board of Elections explain why the members needed to hold a second hearing on many of the same proposed rules.

The Pierre Capital Journal allegedly failed to publish the notice for the first hearing held June 15, according to the board’s draft minutes (available here, starting at the bottom of page 7).

The Legislature’s Rules Review Committee discussed the matter July 15 regarding a variety of state government agencies that ran into notice-publication problems. Here is one excerpt from those minutes regarding rules changes proposed for emergency medical services :

Senator Kennedy noted that the notices for public hearing had not been published as required by the statutes. A discussion was held regarding SDCL §§ 1-26-4 (3) and 1-26-4.1 which require the notice of hearing be published in at least three newspapers at least twenty days before the public hearing. One of the newspapers missed the deadline by one day. The lack of proper notice as required by the statutes was noted for other agencies in addition to the Department of Health. The committee members and
Mr. Decker discussed whether the agency had substantially complied with the statute so that a person likely to be affected by the rules had received sufficient notice.

Chair Hunhoff stated that the SD Newspaper Association should be made aware of the issue that some newspapers are not publishing the notices in a timely manner resulting in a procedural defect in the rule adoption process. The problem needs to be addressed.

Legislators split 4-2 in support of allowing the emergency-medical changes to proceed. The ayes came from Rep. Julie Bartling, D-Gregory; the chairwoman, Rep. Jean Hunhoff, R-Yankton; Sen. Craig Kennedy, D-Yankton; and Sen. Alan Solano, R-Rapid City. Nays came from Rep. Steven Haugaard, R-Sioux Falls, and Sen. Lance Russell, R-Hot Springs.

Later in the same rules review meeting the elections board didn’t receive the same latitude. Here is another excerpt from the legislators’ minutes:

Ms. Shantel Krebs, Secretary of State, and Ms. Kea Warne reviewed the proposed rules. Secretary Krebs noted that one of the newspapers had failed to publish the notice of hearing twenty days prior to the day of the hearing.

Senator Kennedy noted the “Law Implemented” did not reference the various House and Senate bills from the 2017 legislative session as codified that many of the rules were implementing.

Senator Kennedy moved, seconded by Senator Russell, that the rules proposed by the Office of the Secretary of State: Board of Elections be reverted to a prior step per SDCL § 1-26-4.7 (5) – the rules are not in proper form and SDCL § 1-26-4.7 (6) – the public notice was not sufficient.

A substitute motion was made by Senator Kennedy, seconded by Representative Bartling, that the review of the rules proposed by the Office of the Secretary of State: Board of Elections is complete with the recommendation the Board of Elections make the corrections to the law implemented the next time they promulgate rules. Substitute motion failed on a roll call vote with 3 ayes and 3 nays. Members voting aye: Bartling, Hunhoff, and Kennedy. Members voting nay: Haugaard, Russell, and Solano.

Another substitute motion was made by Representative Bartling, seconded by Senator Kennedy, that the rules proposed by the Office of the Secretary of State: Board of Elections be reverted to a prior step per SDCL § 1-26-4.7 (5) and (6) except for the three rules relating to the express voting machines and the random sampling (ARSD 05:02:06:01.04, 05:02:06:10.03, and 05:02:08:00.05). Substitute motion prevailed on a roll call vote with 4 ayes, 2 nays. Members voting aye: Bartling, Hunhoff, Kennedy, and Solano. Members voting nay: Haugaard and Russell.

Warne is the deputy secretary of state for elections. The legislators returned to the broader discussion about the role of newspapers. Here is the excerpt from the committee’s minutes:

A discussion of substantial compliance continued regarding the three agencies that had issues with newspapers not publishing their notice of hearing in a timely manner. Chair Hunhoff stated that in the future, if the statutory deadlines are not met, the agency must pull their rules package and ensure notices are published as required by statute. A letter will be sent to the South Dakota Newspaper Association regarding the importance of the timely publications to the State and the citizens of South Dakota.

The Board of Elections headed by Secretary Krebs did as the legislators directed and held a second hearing that began at 3 p.m. CT on Monday, Oct. 30.

Various additional changes had been proposed and the board adopted the broader package that same afternoon. Secretary Krebs presents them a second time Tuesday when she makes a return visit to the Legislature’s review panel.

The committee meeting starts at 10 a.m. CT. The elections board’s proposals are seventh on a list of more than 20 sets of changes being considered. The agenda shows a 5 p.m. adjournment time. The meeting is the last scheduled in 2017 for the committee. The panel normally doesn’t meet during the annual legislative session, which for 2018 open at Jan. 9 and ends March 26. They would need to hold a special meeting at some later date, on or before noon Jan. 9, for any further actions.

UPDATE: The Legislative Research Council sent a letter later in July to the South Dakota Newspaper Association.

SDNA executive director Dave Bordewyk provided a copy of the letter this morning (Saturday) via email and wrote: “Since then, we (SDNA) have been working with and assisting various agencies on placing their notices. It seems to be going better.”

Here is a copy: LRC letter to SDNA 7-31-17

SECOND UPDATE: Bordewyk responded to the Decker letter with an email Aug. 10. Bordewyk wrote:

Hi, Doug:

I just wanted to let you know that I had received your letter of July 31 regarding problems with publication of public notices. Also, I wanted to let you know that we are taking steps to do what we can to avoid these unacceptable publication problems and issues. I have relayed your letter to our member newspapers and have urged them to make sure they are giving full attention and priority to the proper publication of all public notices.

Also, we are letting you know, as well as various departments and agencies (via Tony Venhuizen), that SDNA can assist in placing public notices in any South Dakota newspaper. (See attached.) We are doing some of that placement work already for a few agencies. One of the chief benefits in working with our office is our ability to track missed publication or errors in publication and work quickly to rectify the problem. If these mistakes can be identified quickly, often we can help state government avoid incurring additional expense or delay in the matters related to the notice.

Please don’t hesitate to contact me if you have any questions or comments. I appreciate you bringing this to our attention.